Review of TV law must strike balance to guarantee the best reception for all

Viviane Reding, Commissioner for Education and Culture, steps up for a European Voice Q & A on the future of television regulation

European Voice

3/20/02, 5:00 PM CET

Updated 4/12/14, 7:44 AM CET

Q: In considering the review of the Television Without Frontiers (TVWF) directive, who is uppermost in your mind: the consumer, broadcaster or advertiser?

A: My aim, in audio-visual policy in general, is to strike the right balance between consumers, broadcasters, advertisers and, of course, those who produce the programming. It can sometimes be like walking on a tightrope.

Q: Is the clause requiring TV stations ‘where practicable’ to reserve at least 50% of their output for European works simply not practicable in the 21st century?

A: The reports we have indicate that the vast majority of mainstream ‘generalist’ channels, which account for about three-quarters of the audience on average across Europe, broadcast more than 50% of European works. Sometimes much more. The weighted average varies between

54% and 82%. I conclude that, for those channels, the clause remains practicable. For specialist channels, the level of

‘practicability’ depends on the individual channel’s market niche.

Q: Are quotas still valid in a digital environment?

A: The so-called ‘quotas’ are one of the fields of national regulation that it is necessary to co-ordinate in a Community directive in order to give effect to the freedom to broadcast, and receive, TV services across Europe. That is the legal position. As to the economic feasibility of quotas, that depends more on the type of channel than on the way it is transmitted. This is why there is the ‘where practicable’ clause. For example, a 50% European output requirement might be less valid for a specialist pay-per-view channel than for a mainstream free-to-air channel. The link with digital is that the new technologies enable the market to provide more of the former. There is a general consensus on the need to promote the production and distribution of European works. The film industry, in particular, needs support for pan-European distribution.

Where opinions diverge is on the means: regulatory measures, support measures or both? In the course of my mandate so far, I have succeeded in strengthening support measures at European level by having the new MEDIA Plus programme approved (within

a budget increase of 30%) and by launching, together with the European Investment Bank, the ‘i2i’ audiovisual initiative. In agreement with Mario Monti, I have increased the legal security for state aids at national level through the adoption of the ‘Cinema Communication’ last September. Notwithstanding, it is worth pointing out, with regard to regulatory incentives, that many member states have gone further than the basic requirements of the directive.

Q: Would you be happy to see the EU give up its rules on quotas at the next round of World Trade Organisation talks? Do you see this ever happening, given current sensitivities in countries such as France and Italy?

A: I have always supported my colleague Pascal Lamy, the Trade Commissioner, whose line is to defend the Community acquis. The essential thing is to keep our freedom, at national and EU level, to take measures to support the audio-visual industry. This is what the current GATS [General Agreement on Trade in Services] arrangements enable us to do.

Q: Viewers can watch programmes on the internet or via digital set-top boxes

thanks to the development of converging technologies. How then does one define what is broadcasting (and therefore subject to the directive) – and what is not?

A: The definition of broadcasting in the directive is based on the notion of point to multi-point transmission. This remains a workable concept. Adapting it to a more content-based definition might be desirable, but would require us to identify solutions that would not perturb the implementation of other Community directives such as the recent e-commerce directive.

Q: If you are watching a news programme on your computer or via interactive set-top box TV, how can strict limits be applied to ‘pop-up’ or ‘splitscreen’ advertisements, which do not form part of the original programme?

A: I believe that the current rules in chapter IV of the directive, in as far as they apply to the examples quoted in your question, leave room for a degree of interpretation. The main principle, to which I attach considerable importance, is that the viewer should be able to distinguish between programme and advertising content.

Q: How can the existing rules be adapted to cover all future means of delivery?

A: A technology neutral, content-based definition on the scope of the directive could achieve this objective, in as far as it might be desirable to do so.

Q: Should there be tougher rules for advertisers where children are the target audience?

A: No. I believe that Article 16 of the current directive provides sufficient protection for children. Our studies have shown that these provisions are effective. To go beyond would be disproportionate.

Q: Are you in favour of relaxing rules on sponsorship?

A: I am not aware of any real difficulty in the implementation of the current rules on sponsorship in Article 17 of the directive. They consist of general principles rather than detailed regulation. The national regulator therefore has a degree of discretion in their implementation.

Q: Are the current rules allowing member states to insist on free access to key cultural and sporting events anti-competitive?

A: In my view they are not anti-competitive. They strike an appropriate balance between the interests of the rights holders and the public policy objective of not depriving a significant proportion of the viewers in a given member state of being able to see, on free TV, events of major importance to society in that member state.

Q: What are the implications posed by enlargement in relation to TVWF?

A: TVWF is part of the acquis that must be transposed by the new member states.

Q: Should the music industry be subject to TVWF rules?

A: TVWF is designed for providers of TV broadcasting services. The rules already apply, therefore, to a TV music channel.

Q: Is there a need for stronger regulation from the Commission to prevent public service broadcasters from using uncompetitive practices to squeeze out new entrants? Could your counterpart Mario Monti take a tougher line on this?

A: I don’t think that there’s a need for further regulation. The Treaty’s rules on competition allow us to strike a fair balance as it is.

For instance, as regards the related issue of state aid to public service broadcasters, Mario Monti and I agreed on the line to be taken in a communication that was adopted by the Commission last October. It has generally been welcomed as a helpful clarification. The Commission is just as tough as it needs to be.

Q: Does the country-of-origin principle work in practice? Is it under threat?

A: Yes, the country-of-origin principle does work in practice. The Court of Justice has, in several instances, been called upon to rule in cases where the principle has been questioned. It has always backed the country-of-origin rule, and its judgements have provided helpful clarification for its implementation.

This enables broadcasters in Europe to operate under the jurisdiction of one, and only one, member state on the basis of their place of establishment and irrespective of where their broadcasts are received. This is, in my view, the main achievement of